Power equipment with no wayleave or easement

[Ferdinand]

I think that the situation around sales of properties is more ambiguous in practice. When we had electricity cables removed, they were quite happy to proceed on the basis of a wayleave from 1958 and three owners ago.

 

”Bare Wayleave” sounds like an arsecovering word for “O Fook, we haven’t got a Wayleave”. Or perhaps it may be the legal minimum that automatically exists with a cable and no other documentation or agreement.

 

F

[newhome]

6 minutes ago, Ferdinand said:

”Bare Wayleave” sounds like an arsecovering word

 

Really? I thought it sounded like an arse uncovered word! 

 

7 minutes ago, Ferdinand said:

 Or perhaps it may be the legal minimum that automatically exists with a cable and no other documentation or agreement.

 

Must be the legal minimum I guess. 'Implied' may be what it means, after all they gained permission to put the pole up (possibly) way back when. 

 

 

 

[Ferdinand]

3 hours ago, newhome said:

 

Really? I thought it sounded like an arse uncovered word! 

 

 

Must be the legal minimum I guess. 'Implied' may be what it means, after all they gained permission to put the pole up (possibly) way back when. 

 

 

 

 

It reminds me of how Car Insurance can revert to Road Traffic Act only, though that may have gone by now as a rule.

Edited April 12, 2019 by Ferdinand

[Ferdinand]

This is interesting:

 

Quote

In cases where there is no form of agreement (express or implied) with the current landowner and/or occupier, it is the Department‟s view that, in relation to overhead lines, only a „bare permission‟ exists for the line. As this is a type of licence revocable at will, the Department takes the view that this is withdrawn whenever the landowner and/or occupier gives Notice to Remove. This applies even if the landowner and/or occupier has been in the property for many years (1-step).

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/208954/Amended_Guidance_for_Applicants_and_landowners_and_or_occupiers_-_June_2013.pdf see para 3.9 .

 

Revocable at will if no express or implied agreement or contract.

 

Hmmm.

 

???

 

But needs some checking and contextualisation.

 

The possible implication is that if the DNO cannot demonstrate a current agreement, either written or by proving that the landholder has accepted money, then they can be instructed to remove their equipment at any point. I think that suggests 3 months notice but I am not certain.

 

That is a very valuable document.

 

Quote

GUIDANCE FOR APPLICANTS AND LANDOWNERS AND/OR OCCUPIERS
Application to the Secretary of State for Energy and Climate Change for the grant of a Necessary (Compulsory) Electricity Wayleave in England and Wales

 

Ferdinand

Edited April 12, 2019 by Ferdinand

[recoveringbuilder]

Well done so far , love it! A man after my own heart!

[vivienz]

I smell success in the air. Keep at 'em.

[Randomiser]

Sadly that smell of success has been in the air a long time.  But I thought it may be helpful to others if I shared experience to date, about 11 months after starting this thread.

 

After months of discussions with SSEN I was finally advised by one of their own wayleave team that the only way to get any traction with having the powerline that runs over our land with no wayleave or easement moved at their expense was to serve notice to have the equipment removed.  This I did in June.  I then followed up a couple of weeks later and was told that as a matter of policy SSEN will not respond to such notices until the very end of the allowed 3 month period.  After more and more chasing, well after three months from the date I submitted the notice, I received an email with a number of documents attached.  One of these was a copy of their application to the Govt. for a necessary wayleave.  Amusingly in that document it said it was only a back-up option as they were in negotiations with the land owner.  I sent more emails asking when, having told the Govt. they were in negotiations, I might actually hear from them.  Nothing for more weeks.

 

Eventually just before Christmas I had an email from a new person in the wayleave department asking if we could meet on site to see what could be done and we finally met in the first week of January.  At the outset I said it had been a very painful process.  After initially being defensive he did as much as admit that it was a deliberate tactic adopted in the hope that most people would lose the will to live and just pay for the work themselves.  Having spent half an hour there with a colleague from their design team and another from the team that would carry out the work he said he would recommend that they underground the cable at SSEN's expense if I agreed to dig the trenches and would sign an easement - exactly what I had proposed to his colleague some eleven months earlier!

 

I dropped him an email earlier this week and apparently he is still waiting for the proposal of the cost split to be approved.  He has also advised that it could take months to get the work scheduled.

 

So my advice to anyone in a similar situation is that if this is now standard practice for SSEN then if you want to avoid the cost of moving cables start the process as earlier as you possibly can, because it could take 18 months or more to get it done.

 

 

 

 

Edited January 23, 2020 by Randomiser

[Oz07]

You don't have any rights to just stop them using it then after serving notice? 

[Temp]

I wonder if it would be possible to charge them rent after the notice period? 

[Randomiser]

15 hours ago, Oz07 said:

You don't have any rights to just stop them using it then after serving notice? 

Unfortunately not.  It seems that if you serve them notice they need to apply for the Necessary Wayleave within 3 months, but they are clearly well set up for this and in my case did so 2 days before that deadline.  The notice period is 12 months.  I need to check but I presume that if they have not secured a Necessary Wayleave within the twelve month notice period they have to remove the equipment, but my guess is that they probably have a further grace period to do it in.

 

Interestingly I had another email last night saying that even if we agree the plan of undergrounding the cable at their cost with me signing an easement it can take a year for the work to be scheduled.  Clearly they are doing everything they can to try and make it as inconvenient as possible.  The email went on to say something along the lines of "but if you want it done sooner you can always pay for it to be done".  I have replied saying a delay is no issue for me as I can begin enacting the planning consent before I need their cable moved and then the planning permission runs forever so I will just it out.

 

Everything I read suggests that the process for securing a Necessary Wayleave is time consuming and expensive for the DNO and there is no provision in the law for them to recover their costs even if the person serving notice submits no argument to the panel reviewing the Necessary Wayleave application and does not even attend the hearing.  I am hoping that will work in my favour.  They have 5 months left before the notice I served runs out, they have not even provided the plan of the proposed rerouting of the cable underground, let alone started any discussion between solicitors on the easement agreement.  I am going to stop chasing them and I will now move in to 'go slow' mode.  At some point presumably their legal team will be asking if they need to progress with the Necessary Wayleave application with the associated costs, I am hoping that I will then have a bit more leverage.

 

This is now becoming a bit of a point of principle.

 

 

 

[Randomiser]

10 hours ago, Temp said:

I wonder if it would be possible to charge them rent after the notice period? 

Yes, but only be signing a wayleave I presume, I absolutely do not want to do with the cable still in my way.

[vivienz]

Not wishing to put a dampener on things, but the work that is supposed to be done on the cables overflying my plot still hasn't happened after it all came to light in about August/September 2018.  That said, this is down to my refusal to sign any paperwork until they get theirs right.  Have now presented me with paperwork for signing 3 times but each time the map they have included has been incorrect.  The first was with the old bungalow that was demolished and no sign of the new build.  The next had both the bungalow and the new build but the power cable was shown in the wrong place.  Finally, they removed the old and new buildings completely, showing only the power cables!  They keep insisting that the plan of the plot doesn't really matter but given that an incorrect plan led to the cables being inadvertently too close in the first place, I disagree.  I have told them that I have no intention of giving them a right in perpetuity (wayleave) over my property if they can't even get a plan correct but they don't seem to employ the brightest and the best in their legal departments.

[Randomiser]

I have this morning been looking at what the actual legislation says, it is covered by the Electricity Act 1989. I am hoping that others on here can sense check my reading of one part of the law relating to Necessary Wayleaves. I believe the relevant section is Schedule 4, Paragraph 6 which I have copied in full below:

Acquisition of wayleaves
6
(1) This paragraph applies where—
      (a) for any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on, it is necessary or expedient for a licence holder to instal and keep

            installed an electric line on, under or over any land; and
      (b) the owner or occupier of the land, having been given a notice requiring him to give the necessary wayleave within a period (not being less than 21 days) specified in the notice—
            (i) has failed to give the wayleave before the end of that period; or
            (ii) has given the wayleave subject to terms and conditions to which the licence holder objects;
and in this paragraph as it so applies “the necessary wayleave” means consent for the licence holder to instal and keep installed the electric line on, under or over the land and to have access to the land for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing the electric line.

(2) This paragraph also applies where—
      (a) for any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on, it is necessary or expedientfor a licence holder to keep an electric line

            installed on, under or over any land; and
      (b) the owner or occupier of the land has given notice to the licence holder under paragraph 8(2) below requiring him to remove the electric line;
and in this paragraph as it so applies “the necessary wayleave” means consent for the licence holder to keep the electric line installed on, under or over the land and to have access to the land for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing the electric line.

(3) Subject to sub-paragraphs (4) and (5) below, the Secretary of State may, on the application of the licence holder, himself grant the necessary wayleave subject to such terms and conditions as he thinks fit; and a necessary wayleave so granted shall, unless previously terminated in accordance with a term contained in the wayleave, continue in force for such period as may be specified in the wayleave.

(4) The Secretary of State shall not entertain an application under sub-paragraph (3) above in any case where—
      (a) the land is covered by a dwelling, or will be so covered on the assumption that any planning permission which is in force is acted on; and
      (b) the line is to be installed on or over the land.

(5) Before granting the necessary wayleave, the Secretary of State shall afford—
      (a) the occupier of the land; and
      (b) where the occupier is not also the owner of the land, the owner, an opportunity of being heard by a person appointed by the Secretary of State.

(6) A necessary wayleave granted under this paragraph—
      (a) shall not be subject to the provisions of any enactment requiring the registration of interests in, charges over or other obligations affecting land; but
      (b) shall bind any person who is at any time the owner or occupier of the land.

(7) Where in pursuance of a necessary wayleave granted under this paragraph a licence holder has erected on any land supports for an electric line, he shall be deemed to have an interest in that land for the purposes of section 7 of the M3Mines (Working Facilities and Support) Act 1966.

(8) In this paragraph “dwelling” means a building or part of a building occupied, or (if not occupied) last occupied or intended to be occupied, as a private dwelling or, in relation to Scotland, a private house, and includes any garden, yard, outhouses and appurtenances belonging to or usually enjoyed with that building or part.

 

My reading is that the situation I am in is covered in sub-Paragraph 2. Sub-Paragraph 3 says the Secretary of State can give a Necessary Wayleave on the terms they see fit. But sub-Paragraph 4 seems to pretty clearly say that the Secretary of State will not grant a Necessary Wayleave if it is on land covered with a dwelling. This seems to be exactly the situation in my case, both the existing and approved houses will be on land under the line of the cable. I therefore read this to mean that the DNO's application for a Necessary Wayleave is bound to fail.

 

I would be very grateful for any input from others on how they read the relevant sections.

Edited January 24, 2020 by Randomiser

[Temp]

18 minutes ago, Randomiser said:

But sub-Paragraph 4 seems to pretty clearly say that the Secretary of State will not grant a Necessary Wayleave if it is on land covered with a dwelling. This seems to be exactly the situation in my case, both the existing and approved houses will be on land under the line of the cable. I therefore read this to mean that the DNO's application for a Necessary Wayleave is bound to fail.

 

 

My reading of para 4 is that the SS can grant a wayleave for an underground cable but not for one on or above ground.

 

If they have applied to the SS for a wayleave for an above ground cable I think I would write to the SS pointing out this paragraph precludes him granting one. Cite any reference number the company gives in their application and your planning reference.

Edited January 24, 2020 by Temp

[Randomiser]

7 minutes ago, Temp said:

 

My reading of para 4 is that the SS can grant a wayleave for an underground cable but not for one on or above ground.

 

If they have applied to the SS for a wayleave for an above ground cable I think I would write to the SS pointing out this paragraph precludes him granting one. Cite any reference number the company gives in their application and your planning reference.

Yup, the cable is strung off poles.

[Randomiser]

Unfortunately my excitement has been short lived.  More reading has revealed that apparently there was a case on this precise matter and in 1997 the court decided that the limitation in sub-Paragraph 4 only applies to new electricity lines. I can't find any more details, but reading the wording again I would not be surprised if it did not hinge on the use of "...to be installed..." where in my case (and I guess the one in the 1997 decision) the cable is already installed.

 

I would still like to find the case if I can, as the difference could be that the electricity company has never held a wayleave, so must have installed the cable without any consent.  I do not know if that is the same as in the case from 1997.

Edited January 24, 2020 by Randomiser

[Oz07]

So rather than chase the matter of re routing would your efforts not be best spent just serving them notice? If they then have 12 months then so be it but the line will defy be gone or will secretary of state intervene?

 

Your kind of starting on a back foot with the negotiating by saying your happy for it to stay but you want it underground. The (excuse the pun) middle ground for them is you can either pay for it or help to do it (trench). Surely if you change your argument to "heres your notice get the cable off my land" then they will have more incentive for you to offer you what you actually want (underground cable)?

 

I appreciate I have no knowledge of how these matters actually work i'm just looking at it from a negociating point of view.

[Temp]

5 hours ago, Randomiser said:

Unfortunately my excitement has been short lived.  More reading has revealed that apparently there was a case on this precise matter and in 1997 the court decided that the limitation in sub-Paragraph 4 only applies to new electricity lines. I can't find any more details, but reading the wording again I would not be surprised if it did not hinge on the use of "...to be installed..." where in my case (and I guess the one in the 1997 decision) the cable is already installed.

 

I would still like to find the case if I can, as the difference could be that the electricity company has never held a wayleave, so must have installed the cable without any consent.  I do not know if that is the same as in the case from 1997.

 

I could only find this which I expect you have seen..

 

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/274713/wayleave_guidance.pdf

 

"6.1 Q: Can the licence holder make an application for a necessary wayleave 
to install or retain an electric line on or over, or under, a house or land which 
has planning permission for a dwelling? 
A: Where the necessary wayleave application relates to a new electric line the 
Secretary of State cannot grant a necessary wayleave where a dwelling covers the 
land or where planning permission exists for a house to be constructed, unless the 
line is to be placed underground (see paragraph 6(4) of Schedule 4 to the 1989 
Act). The same restriction does not apply where the application for the grant of a 
necessary wayleave relates to an existing electric line. This interpretation has been 
upheld by the High Court (see R v Secretary of State for Trade and Industry, ex 
parte Wolf (1997) QBD; unreported; case CO/0788/97)."

 

I couldn't find any more on that case online

[Randomiser]

4 hours ago, Oz07 said:

So rather than chase the matter of re routing would your efforts not be best spent just serving them notice? If they then have 12 months then so be it but the line will defy be gone or will secretary of state intervene?

 

Your kind of starting on a back foot with the negotiating by saying your happy for it to stay but you want it underground. The (excuse the pun) middle ground for them is you can either pay for it or help to do it (trench). Surely if you change your argument to "heres your notice get the cable off my land" then they will have more incentive for you to offer you what you actually want (underground cable)?

 

I appreciate I have no knowledge of how these matters actually work i'm just looking at it from a negociating point of view.

Sorry if I am confusing things.  I served notice in June last year, that is what triggered them to make the Necessary Wayleave application.  They applied on the basis that we were trying to reach a voluntary agreement, which is what the guidance says is expected of the parties, that means nothing happens for 6 months.  If after 6 months nothing is agreed then I think the Necessary  Wayleave process carries on with a written or oral hearing.  My plan would be to refuse the written hearing in favour of the oral one as that likely costs them more and hopefully pushes them further towards moving it being the lower cost.

 

What I want to check is that the cost of moving the cable at my cost is one of the things for which there is a fixed schedule of costs.  I do not want to lose the Necessary Wayleave process and then admit defeat and say I will pay for SSEN to decide that will cost me £100k so they recover some of their costs.

 

 

Edited January 24, 2020 by Randomiser

[Randomiser]

I thought it would be useful to update on this long running saga as there are a few points that may be helpful to others.

 

I have chased SSEN again for an update on progress with planning the rerouting / undergrounding of the cable.  The response was an email telling me they are really busy and will not get back to me for a long time, for a second time they said in the email if I want it done quicker I can always pay them to do it.  It seems pretty clear to me that they have a clear policy of trying to avoid cost by delay, delay and further delay.

 

As it is almost 6 months since they applied for a Necessary Wayleave I was thinking ahead to notification by BEIS that the 6 month abeyance period had ended.  I wanted to check that they would write to me at my current address and would not try to send the letter to the plot.  I was really surprised when having left a message for the person I was put through to at BEIS they called me back, I had expected that I would have to keep trying, I could not take the call but they even gave me their direct dial number in the message they left.  I was very impressed.

 

I called them back and spoke to them yesterday afternoon, there person I spoke to had taken the time to look up my application before they called me so was up to speed with the application details.  They told me the following:

I) BEIS has had a massive increase in Necessary Wayleave applications recently.

II) The application relating to my site has yet to be validated by BEIS because of the backlog caused by the increase in applications (mine is in the next batch due to be reviewed in the next couple of weeks).

III) The six month abeyance period does not begin until the application is validated.

IV) That BEIS will write to me when the application is validated and I can refuse to have it put into abeyance - I did not realise this before.

 

Given the experience of some people in the past recounted here, versus my and other's recent experience, I get the impression that SSEN and possibly other DNOs are taking a much harder line now and trying much harder to avoid the cost of moving their equipment.  This could also explain the recent surge in Necessary Wayleave applications BEIS has experienced.

 

As soon as I receive notification from BEIS I will immediately respond refusing to accept the application goes into abeyance given SSEN's lack of engagement over the 9 months since my removal notice was served.  I will then email the legal team at SSEN telling them I have blocked abeyance and reiterate the offer made to their wayleaves team where they move the cable at their expense in exchange for me agreeing an easement.  Given experience to date I will insist that a clause is included in any agreement that they have to carry out the work in a stated period.

 

Hopefully if anyone else is in a similar situation now or in the future they will find this information helpful

 

 

 

 

 

 

 

 

Edited March 6, 2020 by Randomiser

[Ferdinand]

14 minutes ago, Randomiser said:

Given the experience of some people in the past recounted here, versus my and other's recent experience, I get the impression that SSEN and possibly other DNOs are taking a much harder line now and trying much harder to avoid the cost of moving their equipment.  This could also explain the recent surge in Necessary Wayleave applications BEIS has experienced.

 

Yes, it sounds like it.

 

I think time is the lever they are using, and disruption to your project is the wedge to encourage you to do what they want.

An FOI on the numbers of Necessary Wayleave applications may be interesting.

Edited March 6, 2020 by Ferdinand

[Randomiser]

Another update, hopefully the saga is nearing an end.

 

I had an email a few weeks back from SSEN kindly offering to pick up less than half the cost of moving the cables running over our site, for which they have never had a wayleave.

 

At about the same time I had a letter from BEIS telling me they had finally registered SSEN's Necessary Wayleave Application.  I am suspicious it was this that prompted SSEN's offer.

 

I thought about all this and wrote back to SSEN and suggested a possible way forward would be to agree the cost if they would 'throw in' providing a temporary supply for the site and the connection once we have finished the build - my logic being that they might give me more willing to give me something that costs the significantly less than it is worth to me.  I pointed out that BEIS had registered the Necessary Wayleave Application and said that if we could not reach an agreement within a month I would inform BEIS I did noy want the application left in abeyance and would request a formal hearing on the application (which would be at SSEN's expense).

 

Having senr the email I got an auto response back telling me the person I had emailed had left SSEN, this did not sound good. But it did give an alternate to email, so I forwarded my email to them.  The new person quickly responded to say they could not agree to my proposal due to regulatory constraints but that she was going to return to the design team and speak to them about it.  Yesterday I had an email saying SSEN would bear the cost of the two new poles and relaying the cable if I would carry out the excavation.  Exactly what I proposed well over a year ago!

 

It is not done and dusted yet as I have yet to see the draft Easement Agreement and that could have some unreasonable terms in it, but finally some progress.

 

It seems, compared to some past experience others have reported that SSEN are playing hard ball a bit more now.  I have no idea if the change in their position was due to the change in contact person or because I said I would start the hearing process.  But my sense is that unless you are pretty robust they will be looking to transfer a lot of cost onto the self builder.  This may explain why the BEIS has experienced a large number of Neccessary Wayleave Applications.

 

As ever, hopefully this might help others in a similar situation in the future.

[andymb]

Just in case another experience may be useful to others, here is mine:

 

Our site (barn conversion) has some apparatus that is detailed in and old expired wayleave agreement, and some that isn't detailed the agreement at all. There is a 11Kv pole around 10m from the building and a pole mounted transformer supplying our neighbours' house about 15m from the building.

 

Quote for connection (which included upgrading the Pole mounted transformer was £17000 if they did all of the work or £12000 if they did only the non contestable work. 

 

I've tried to negotiate a reduced connection price with the DNO in exchange for a wayleave agreement  but they have flat out refused, stating that:

 

"Our connection charges are made in accordance with our Common Connections Charging Methodology and we are unable to accept a partial contribution from our customers with respect to their connection charges. This is to ensure that charges are levied consistently and fairly throughout our distribution area.  I am sure you will agree that it is would be unfair for us to use our customers’ money, particularly those in fuel poverty, to partially fund a new electricity connection to your new residential development."

 

I have tried, at length to persuade them that it will almost certainly be cheaper for them, (and a more economical use of customers' money!) to "do  a deal" with me rather than have to go down the necessary wayleave route but they have refused to engage at all, stating that they don't want to set a precedent that other landowners will follow.

The only alternative that they have offered me is £1500 for an easement, which I have declined.

 

Given the lack of engagement from the D.N.O I served them notice to remove the apparatus back in august, and given Randomiser's experience, I have asked them not to hold my notice period in abeyance because if they won't budge, then I consider negotiations over.

 

This week, I did receive another email stating that they might be able to reconsider the easement figure by taking into account the open market value of the property in it's current state, but they didn't give me a figure, so it was a fairly meaningless email really......

 

I hope that my insight may give others an idea of what to expect, and many thanks for the info that I have already gleaned from this thread and from the rest of the forum

 

 

 

 

[joe90]

On 26/06/2020 at 13:24, Randomiser said:

It is not done and dusted yet as I have yet to see the draft Easement Agreement and that could have some unreasonable terms in it, but finally some progress.

did you get your temp connection as well?

[Randomiser]

On 11/09/2020 at 14:20, joe90 said:

did you get your temp connection as well?

Sorry, I have not been on here recently, hence the delayed reply.  No, they were not willing to combine any thing they considered separate.